Are “consequential damages” available on contract claim against an insurer in an action brought by an insured for breach of a commercial liability policy? In D.K. Prop., Inc. v. National Union Fire Ins., a recent case out of the First Department, the answer is a resounding “yes”. There, the complaint alleged two causes of
Pleadings
Insurers Must Defend Claims Brought By Hulk Hogan: Intentional Tort Deemed “Accidental” Occurrence

To welcome the New Year, we venture outside this blog’s traditional realm of commercial division practice and procedure to reflect on the nature of “intent” at the intersection of professional wrestling and insurer coverage liability. No, this is not a surrealist poem, but a recent decision by Justice Peter Sherwood of the Commercial Division for…
Amended CPLR 503(a): “Extra Butter” Sneakerheads Must Defend Alleged Theft of Yeezys, and Other Fly Kicks, in New York County

It has been almost one year since the New York legislature amended CPLR 503(a) to provide for venue in “the county in which a substantial part of the events or omissions giving rise to the claim occurred.” Yet a recent decision by Commercial Division Justice Andrea Masley shows that some practitioners have either forgotten about…
Is the Defense of “Release” Documentary Evidence Under 3211(a)(1) or an Affirmative Defense Under (a)(5)(or does it matter)?

In Miller v. Brunner, the Appellate Division, Second Department spoke clearly (again) about how to move to dismiss on the defense of release. In a case arising out of the Commercial Division in Kings County (Hon. Sylvia G. Ash), a question on appeal was whether the defense of release is considered “documentary…
“Unnecessary and Inappropriate”: The declaration no one wanted

Your client wants to recover damages for breach of contract and demands that you assert as many causes of action as possible. In addition to the breach cause of action, you consider a declaratory judgment claim, right? Wrong! The Second Department has held time and time again that “[a] cause of action for a…
Second Department Allows Untimely Claims to Relate Back to Action Brought By Wrong Plaintiff

Can substitution of a new plaintiff who has proper standing cause “surprise or prejudice” to a defendant after the statute of limitations would have expired, such that leave to file an amended complaint should be denied? Not if the two plaintiffs are the same person switching from their individual to representative capacity, held the Second…
First Department Rejects Kesha’s Proposed Counterclaims Seeking to Terminate Contracts With Dr. Luke


In a recent decision handed down just a couple of days ago, the Appellate Division, First Department affirmed Justice Kornreich’s denial of singer and songwriter Kesha Sebert’s (“Kesha”) motion for leave to file second amended counterclaims, meaning Kesha will not be released from her recording contracts with producer Lukasz Gottwald, also known as Dr. Luke…
Default Judgment Entered on a Promissory Note Even Though Claim Likely Violated Criminal Usury Laws

So a plaintiff obtains a default judgment against a defendant on a promissory note case. Defendant fails to appear or defend. On a motion to enter the default pursuant to CPLR 3215, one would assume that without opposition, judgment would be entered for the amount of the loans. Interestingly, that’s not quite what happened
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Fox News Executive Not a Faithless Servant, Despite Allegations of Sexual Harassment


In a recent Commercial Division decision, Pozner v Fox Broadcasting Company, (2018 NY Slip Op 28102 [Sup Ct, NY County Apr. 2, 2018]), Justice Saliann Scarpulla declined to extend the application of the faithless servant doctrine to a circumstance where no New York court has applied it before.
Cliff Pozner (“Pozner”), a former…
When Is A Fraud Claim Duplicative Of A Breach Of Contract Claim?


Generally speaking, a fraud claim that is “duplicative” of a breach of contract claim will be dismissed. But when is a fraud claim sufficiently duplicative of a breach of contract claim so as to warrant its dismissal? The New York County Commercial Division (Sherwood, J.) recently answered this question in xLon Beauty, LLC v Day…